Gay marriage is a controversial social practice within the United States. Jost, an editor at Sage Publications, explains in his article entitled “Marriage Showdowns: Will Voters Bar Marriage” that “seven states have legalized gay marriage while more than 26 states have had either constitutional amendments that prohibit gay marriage or statutory bans (Jost 3). Friedman's book entitled Gay Marriage explains that the existing policy on gay marriage is based on the provisions of the Defense of Marriage Act (DOMA) that was passed by the federal government in 1996 (Friedman 31). DOMA defines a marriage as a union between a man and woman and also explains that the word “spouse “should only be used to refer to marriage partners from opposite sexes. In her article entitled “DOMA Damages Same-Sex Families and Their Children”, Mary Bonauto explains that this federal legislation also grants states, the choice of non-recognition that allows the states to either recognize or ignore same-sex marriages conducted in other states (Bonauto 4). This freedom has been used by some states at the expense of gay couples thereby arousing numerous constitutional concerns. However, there are four significant constitutional concerns that have been raised by the states, challenging the constitutionality of the Defense of Marriage Act. These constitutional concerns are that DOMA goes against the Full Faith and Credit Clause of the U.S constitution, this federal Act is also based on a fixed document that does not keep up with the dynamic American culture. In addition, DOMA denies some American citizens some fundamental rights like enjoying health insurance or filing taxes jointly. The fourth concern is that gay couples end up losing property and child responsibility after divorces because courts are not ready to recognize gay marriage as being part of the institution of marriage. Due to these constitutional concerns DOMA should therefore be repealed or eradicated.
Focusing on the first constitutional concern that has been raised concerning the constitutionality of the Defense of Marriage Act, John Feldmeier explains in his article “Federalism and Full Faith and Credit: Must States” that those in favour of gay marriage argue that the Defense of Marriage Act goes against the “Full Faith and Credit Clause” of the U.S. constitution that “requires states to honour personal legal actions performed in other states” (Feldmeier 108). Civil unions and other gay activists argue that the choice of non-recognition extended to the states by the Defense of Marriage Act creates a condition whereby some states discriminate against a portion of American citizens on the basis of their social affiliation.
Some people disagree with this argument because they believe that gay marriage is immoral. For example, Friedman explains that, in 2006, the Supreme Court of the state of Massachusetts banned residents of other states; where same sex marriage is not legal, from same sex marriage within the state of Massachusetts (Friedman 42). It is clear from the provisions of this constitutional amendment that the state of Massachusetts was not ready to treat people from other states equally with its own people. Every American citizen should receive equal justice anywhere in the United States. However, this was not the course that the state of Massachusetts was following in that the constitution amendment that the state made in 2006 was aimed at giving the residents of Massachusetts privileges over non-residents within the state of Massachusetts. This action by the state of Massachusetts affected interstate commerce between Massachusetts and other states in that people from other states who were willing and ready to either conduct business or become Massachusetts residents were discouraged from settling in the state of Massachusetts due to their sexual inclinations. They feared that they could not be allowed to enjoy their marriage partnership due to the policy of non-recognition that had been set in place. In addition, the action of Massachusetts not to recognize same-sex marriages from other states affected state revenue in that if same-sex couples would settle in the state of Massachusetts they would be eligible taxpayers which would be a source of revenue for the state of Massachusetts. From this constitutional concern, it is clear the Defense of Marriage Act affects brings about discrimination against American citizen who practice gay marriages, it reduces state revenue and also affects interstate commerce.
The second constitutional concern is that the Defense of Marriage Act is a federal law that is based on the U.S. Federal Constitution which is a fixed document that is meant to serve a dynamic American society. Bearing in mind that the opinion and the desires of the Americans society evolves over time, the Defense of Marriage Act is not applicable for the American society in that its definition of the institution of Marriage is based on the U.S. federal constitution that the founding fathers of the United States put in place back in 1787. Since then the social environment within the United States has changed drastically. Unlike those days when gay marriage was considered immoral and not part of the American culture, gay marriage has now been widely embraced by people in the United States. The U.S federal constitution cannot be used today to address the issue of gay marriage because as the framers of the constitution wrote it down, they did not put any provisions relating to gay marriage since at the time it was not something that was broadly practised by the American public and if there were people who practised it, they did it in secret. Therefore, only a heterosexual marriage is addressed in the U.S Constitution. However, the fact that the definition of marriage with the U.S Constitution remains the same even after more than two centuries has passed, shows that the federal government of the United States has had very minimal response to the changes that are taking place in the ever-evolving society specifically in marriage as an institution. Due to the slow response of the federal government to the changes within the dynamic American society, some states have begun to make constitutional amendments in order to cater for the needs of the ever-evolving populations within the states. Various States have begun to realize that since the Defense of cannot be used to serve the ever-evolving American society.
Monica Davey in her article in the New York Times entitled “Iowa Permits Same-Sex Marriage for 4 hours, Anyway" provides a good example, the Varnum v. Brien (2009) case, to illustrate the constitutional amendments being made to cater for the needs of the ever-evolving society. In this case, the Supreme Court of the state of Iowa decided not to give marriage licenses to same-sex couples (Davey 6). The plaintiffs in this case were six same-sex couples that had been denied marriage licenses based on the idea that the definition of marriage is the union of a man and woman according to the Defense of Marriage Act. The judges used the “intermediate scrutiny test” which is used to determine that a certain state law does not “substantially relate to important government interest” (5). The Iowa state action to deny same-sex couples marriage licenses did not pass the intermediate scrutiny test in that it did not affect important government interest in any way. The Iowa Supreme Court finally resolved that denying same-sex couples marriage licenses violates the Equal Protection Clause in that every adult in a marriage should be treated equally irrespective of whether a marriage is hetero-sexual or homosexual. The constitutional amendment in the state of Iowa to permit gay marriage within the state that arose from the court case Varnum v. Brien (2009) is very important in that it makes a clear indication that the provisions of Defense of Marriage Act are not working in some states since it is based on a fixed document. States have to respond to the needs of their dynamic populations by making their own constitutional amendments and not relying on the Defense of Marriage Act which is unconstitutional.
The third constitutional concern that arises from the Defense of Marriage Act is the fact that DOMA denies federal employees the opportunity to receive benefits that are received by opposite sex partners and spouses. Since the Defense of Marriage Act defines a marriage as being a union between a man and woman, same-sex couples who are federal employees, in some states, are not allowed to have a social security spousal benefit, they cannot file taxes jointly and in some cases same-sex couples cannot even enjoy health insurance benefits. For sure, these same-sex couples, who are federal employees, are law-abiding citizens who contribute to the economy by paying their taxes yet some state governments decide to discriminate against them by denying them rights that they really deserve on the bases of. Joan Kimberly, in her U.S Supreme Court cases analysis in the Massachusetts Lawyers Weekly magazine gives a good example of the Goodridge v. Massachusetts Department of Health (2004) whereby same sex couples were "Barred access to the protections, benefits, and obligations of civil marriage” (Kimberly 4). The court ruled that the state constitution stipulated that everybody was equal and hence the government should at no time create a subordinate class of citizens within the state. The judges explained that “marriage was not a privilege that a state should give to its people but is rather a crucial right that should be free of governmental interference” (5). The court hence came to a conclusion that denying same-sex couples their benefits violated the Equal Protection Clause and the Due Process Clause. This Court case, Goodridge v. Mass. Department of Health, is important in that it clearly shows how the federal government uses the provisions of Defence of Marriage Act to create a situation where some people are not treated fairly. This is contrary to what we would expect of the federal government in that the American voters elect it to power so that it can in yield this power to the voters by making sure that the social contract that is granted by voters to their elected government officials is met.
The social contract involves protection of the rights of citizens which includes their entitlements and other benefits that the Defense of Marriage Act has continued to deny American citizens who are gay. Kimberly points out that, “This court case was very important in that it was a wakeup call to the federal government, urging the federal government to realize that it does not have its own power” (6). The power of the federal government comes from the American voters who elect federal government officials to power. The federal government should reciprocate by making sure that everyone enjoys equal protection of the law so as to reflect democratic accountability to the voters and create a situation that federal government makes happy employed voters who will in return be willing to vote the government back to power in coming elections. Therefore, the state of Massachusetts found it important to get rid of the federal definition of Marriage in order to yield to the needs of its people. This is another great example that the Defense of Marriage Act is unconstitutional and is inapplicable for the use by states. .
The fourth constitutional concern facing the Defense of Marriage Act is the fact that since the federal government does not support same-sex marriage in its definition of Marriage, the federal government does not also support any cases that results from same-sex marriage like divorce rights. Currently there are very many cases that are pending in state courts regarding divorce of same-sex marriage. The delay in the ruling of these cases is the mere fact that the federal government under the provisions of Defence of Marriage Act only recognizes spouses as being a man and woman. Any other definition of marriage in the view of the federal government is not applicable. According to the federal government, same-sex couples should not enjoy some rights that spouses in civil marriage get to enjoy. These rights includes, filing a divorce, the right to share property between the two divorced same-sex partners. And also the sharing of responsibility in terms of caring for kids in case the same-sex partners are parents or guardians. For example, in his article entitled “Texas Court rejects Gay Couple's Divorce petition”, Black explains that on 2nd March 2011, there was a court case in the 5th Texas Court of appeal whereby a lawyer who was representing a gay client wanted the court to grant his client the right to divorce in the state of Texas (Black 3). The lawyer's client was legally married in Massachusetts in 2004 when the state of Massachusetts approved gay marriage but parted ways with his partner after about two years. The client who now resides in the state of Texas wanted the Court of appeal to allow him to get divorced from his spouse in the state of Texas. The judges in this case argued that in 2005 the state of Texas voted against gay marriage. In her article in the New York Times entitled “ Gay Marriage in Texas” Susan Carlin says that 76% of the voters in Texas voted against gay marriage in 2005 (Carlin 2). Granting this client his divorce rights would mean that the state of Texas supported gay marriage yet the State strictly abides by the definition of marriage as union between a man and woman which is in line with the Defense of Marriage Act.
In addition, granting a divorce to this client would mean that the state of Texas was going against the will of the Texans who had voted with a landslide majority in 2005 highly opposing gay Marriage. The 5th Court of Appeal of the state of Texas argued that since the state did not support gay marriage and did not recognize gay marriage as an institution. The prescription that the court would give the client was the end the union in that the clients were not marriage according to Texas gay marriage Law (Black 4).The judges finally made a ruling that the 5th Texas Court of Appeal could not grant the client a divorce because “The parties lacked standing to file a divorce case in the state of Texas that does not recognize them as being married. Since the two same-sex couples were not party to a Marriage they cannot file a divorce” (Black 5). Therefore, there was no ground to file this case.
From this court case it is clear that the provisions of the Defense of Marriage Act allows states to treat people unequally in that the gay couple in this case, 5th Texas Court of Appeal, cannot file a divorce because of their sexual orientation. Gary Hartman in his book Landmark Supreme Court cases: the most influential decisions of the Supreme Court of the United States explains that “...going by the terms of the ruling of the court case Lawrence v. Texas (2000) the ruling of the 5th Texas Court of Appeal violated the Equal Protection Clause as well as the Due Process Clause” because the divorce between the gay couple did not affect any important government interest in any way (56). The action of the Texas Court of Appeal to stop the same-sex couples from filing for a divorce indicates government interference in the institution of Marriage. This is highly disapproved in the Lawrence v. Texas case which argues that marriage and the rights associated with marriage is not a privilege that the government grants its people but is actually a fundamental human right that should be free from any governmental interference. Since the Defense of Marriage Act does not promote equal treatment of everybody in case of a divorce it is hence unconstitutional.
Finally, looking at the arguments above that render the Defense of Marriage Act as being unconstitutional, it is clear that the Defense of Marriage Act’s major interest is to deny gay couples the rights that they should truly enjoy. Though, those that are against gay marriage say support the Defense of Marriage Act, it is crystal clear that it is unfair and unjust because it goes against the “Full Faith and Credit Clause.” This federal legislation also based on the U.S Constitution which is a fixed document yet the American society is evolving. In addition, DOMA denies gay couples fundamental rights like health care and joint filing of taxes. Finally this Act creates a situation whereby the federal government is not concerned about the children within gay marriages in that many courts are not ready to assist gay couples in case of a divorce. Due to these constitutional concerns, it is worthwhile to conclude that, this federal legislation should be eradicated in order to protect the rights of gay couples so that they can enjoy the freedom of this great land with no limitations.
Works Cited
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